This will be one of a series of posts on my thoughts and experiences as an elected faculty governor on UBC’s Board of Governors. My opinions are my own and do not represent the opinions of other governors or of the Board itself.
British Columbia’s original University Act of 1908 created a Board of Governors consisting of the Chancellor, who acted as chair, the President, and nine persons appointed by the Lieutenant Governor in Council. Faculty and staff were explicitly excluded from being appointed to the Board (Section 35, with reference to Section 39(f)). Students are not mentioned at all, but in 1908, no one would imagine students being appointed to any university governing body.
Professors, including Deans, were involved in university governance through the Senate and their Faculties. Students were excluded from participation in the governance of their university.
The current University Act (from 1996, but with subsequent legislative changes) provides for 8 elected governors on UBC’s Board of Governors, including 3 faculty members, 3 students, and 2 staff members. The Chancellor and the President are still ex-officio members, but the Chancellor no longer chairs the Board of Governors. There are now 11 governors appointed by the government, and the Act requires the board chair to be chosen from these 11 members.1 Other than this exclusion from becoming chair of the board, there are no other restrictions in the University Act on elected governor participation in board business.
Given the absence of any restrictions in the legislation, one expects the elected governors to participate in every aspect of board business unless they are in conflict of interest for a matter on the board’s agenda. This implies they are eligible for membership on any committee or even to chair many of the committees, with the decisions for such assignments based entirely on their suitability given their skill sets and experiences. The Committee Rules and Practices (Section 4) of UBC’s Board of Governors confirm this by listing no restrictions based on whether a governor is elected or appointed. The terms of reference of the Board’s committees do set the composition of each committee, but they do not restrict any governor from being appointed as chair of a committee based on whether they are elected or appointed governors.
In practice, it is likely the chair of the board’s finance committee, for example, will be chosen from among the appointed governors given the need for an expert financial qualification and background as basic competencies to lead these committees. (The government office that appoints people to the boards of crown agencies takes into consideration the needs of a board for certain skills sets.) In theory, however, an elected faculty governor from the Sauder School’s Finance Division or Accounting Division, say, would be qualified to chair this committee.
How is conflict of interest (COI) considered in these committee assignments and the subsequent work these committees do?
UBC’s Board of Governors operates under the Code of Conduct and Conflict of Interest Guidelines (“the Code“) approved by the Board and last updated in 2017. Section 6 of the Code defines conflict of interest in terms of “private interests” and “private duties.” The Code is consistent with the University Act in not placing restrictions on governors’ participation in the board based on their category of elected or appointment.
Some people bristle at the lack of such restrictions as they imagine constant conflicts of interest for students, staff, and faculty to even be on the Board of Governors. Indeed, it has long been the position of the Association of Governing Boards (AGB), a US organization, that faculty, staff, and students should not be on university boards: “It is AGB’s view that faculty, staff, and students ordinarily should not serve as voting members of their own institution’s governing board because such involvement runs counter to the principle of independence of judgment required of board members” (from PDF p. 7 of the AGB’s Statement on Board Responsibility for Institutional Governance.)
The AGB has had great influence at UBC in recent years. While much of the work of the AGB is valuable, their position that elected governors should not be on university boards has been problematical in my experience. Our Board leadership seems to have consulted with them on issues where there is a clash of opinions with the elected governors about our roles on the Board. This is in spite of feedback from some of the elected governors, myself included, that we object to using the advice and services of an organization that believes we should not be on the Board in the first place.
Of course, the University Act statutorily settles the legitimacy of faculty, student, and staff representatives on boards for BC universities. This statutory legitimacy means decisions that would limit or exclude these elected representatives from participating in the business of the university must clear a high bar before being made. Here in BC (and the rest of Canada), we have clearly decided there are advantages to having the university community participate in its own governance.
Issues 1: Committee Composition and Assignments.
Just as I came on the Board, new terms of reference for the Board’s committees had been passed by the Board after a review of the committees. These changes included changes to the composition of the committees, which resulted in reducing the representation of elected governors below proportional representation based on our prevalence on the Board (a ratio of 8 elected governors to 11 appointed governors) on some key committees.
The Chancellor, the President, and the Board Chair are ex officio members of all committees. Because the Board Chair is also an appointed governor, I could make an argument the working ratio for committees should be consistent with the ratio of 8 elected governors to 10 appointed governors.
When the updated committee assignments came out just 3 months after I came onto the Board, I learned I had been removed from the Finance Committee and the Governance Committee. Eventually the Chair of the Finance Committee (who seemed as surprised as I was that I had been removed from the committee) used his power as Chair to invite me (and another elected governor who had been removed from the Committee) to participate as a non-voting member of the committee, including in closed and in camera sessions. The Chair of the Board told me the new rules at the time had reduced the number of elected governors on the Finance Committee to 2, one of whom must be a student. There are 5 appointed governors on the Finance Committee. (This made the ratio of elected to appointed governors equivalent to 8 to 20 instead of 8 to 10.)
In response to a request to reconsider the composition of the Finance Committee, the Board changed the rules again to include 3 elected governors on the Finance Committee, one student, one staff, and one faculty governor, and I was assigned to be on the Finance Committee again. There remain 5 appointed governors on this committee. This 3 to 5 ratio is not the 4 to 5 ratio of elected governors to appointed governors on the Board. This change took several months to happen, during which UBC’s faculty did not have a voting representative on one of the most important committees of the Board.
The Governance Committee also has a reduced ratio of 3 elected to 5 appointed governors instead of a 4 to 5 ratio. Several elected governors raised concerns about this in September, but no changes have been made so far.
The Property Committee has equal numbers of elected and appointed governors ( 4 to 4), as does the People, Community, and International Committee (4 to 4).
The Executive Committee, which is composed of the chairs of the Board’s committees, has 2 elected governors and 7 appointed governors. Note there are only 2 committees chaired by elected governors. A student is invited to participate in a non-voting capacity on the Executive Committee and this role is rotated between the student governors. Given this committee’s powers, particular during periods between regular Board meetings, I believe the membership of this committee should be rebalanced to better reflect the proportion of elected governors on the Board and to ensure there is a student member.
Given the increasing delegation of the Board’s work to its committees, and the increasing use of the consent agenda in Board meetings, it is important to ensure the perspectives of elected governors, and hence the university community, are well-represented on all the Board’s committees, including in the leadership of these committees. In theory, even though few elected governors chair a committee, elected governors can also take the role of vice-chair on some committees. However, the role of vice chair is not well-defined and so the participation of vice chairs in the leadership of the committees is highly dependent on the committee chairs’ engagement with their vice chairs.
Issues 2: Committee Assignments and Accountability to the Board
By the current rules of the Board (Section 4), the committee assignments are made by the Board Chair with the assistance of the President. The Board Chair then decides who to assign as chairs of each committee in consultation with the Board’s Vice Chair (we have 2 Vice Chairs at this time). These assignments are not subject to final approval by the Board.
This process provides the President with great influence over the committee assignments. And this influence is invisible, even to the Board itself.
In my opinion, this practice does not allow for transparency and accountability to the Board, and hence to the university community and the general public.
UBC’s Board of Governors should create a nominating committee to recommend committee assignments to the Board. Queen’s University’s Board of Trustee’s, for example, has successfully used this approach for some time through its Governance and Nominating Committee.
Issue 3: COI and Exclusion of Elected Governors
A governor with a conflict of interest (COI) connected to an agenda item for a Board committee or the Board itself needs to declare their conflict and a decision is made as to how it will be handled. In some cases, it is appropriate to recuse oneself from the discussion and deliberation on that item. A governor should also raise a potential COI matter related to another governor when they believe one may exist. The Board has encoded its approach to COI in the Code, which provides guidance on how to proceed when COI is raised.
Recall that COI is defined in terms of a governor’s private interests and private duties. This means any COI conversation must engage the individual governor as part of the process to consider their private interests and private duties. The Code (Section 7.6, e.g.) is clear on this point.
The Code does not anticipate COI decisions based solely on whether a governor is an elected governor.
In March 2022, the Board Chair communicated to faculty and staff governors that we would be excluded from Board decisions about compensation and terms and conditions in contracts when the Board appoints senior administrators based on a determination that we would be in conflict of interest as employees of the University. In this determination, we would not just be asked to abstain from voting, but we would be denied access to relevant documents and be asked to recuse ourselves from the discussion and deliberations.
It is worth noting that the compensation of all senior administrators in BC universities is publicly released each year, as required by law. Contracts are available to the public through a Freedom of Information request.
This sudden exclusion was a surprise to me since I had already participated fully in appointments and reappointments since joining the Board, including in the reappointment of the President.
Contrary to the Code, I had not even been informed any COI question had been raised involving me, and I certainly had not participated in any process to examine my private interests and private duties in relation to this matter.
I raised my concerns and objections to the Board Chair immediately and received no response until after the Board meeting in June, when the matter was referred to the Governance Committee.
Eventually, an interim decision was made between Board meetings to allow faculty governors to participate fully in the appointments of non-academic administrators and staff governors to participate fully in the appointments of academic administrators. Faculty governors could participate fully in the appointment of the VP Finance and Operations, for example, but could not participate fully in the appointment of the VP Academic and Provost or a Dean.
Naturally, I asked whether the faculty governors would be allowed to participate fully in the appointment of the President, the most senior academic administrator appointment in the University. (The President’s contract is published online, so it seemed absurd to me that faculty governors would be denied this document.)
In the end, the Governance Committee decided that COI is to be assessed with respect to the private interests and private duties of governors, as the Code says, and so faculty and staff governors could participate in these decisions unless there was a conflict arising from a private interest or private duty.
I had thought this decision had settled the way in which COI matters involving elected governors would be managed.
In October, another situation arose in which a COI determination was made that affected how the elected faculty and staff governors will participate in Board business and, again, it was made without engaging the faculty governors in the discussion. Since the matter is still to be resolved, I will not provide any details here.
To be clear, I am not arguing that faculty and staff governors could not have conflicts of interest that arise from our other relationships to the University, including our employment relationships. I am simply saying that a governor (elected or appointed) should be provided with an opportunity to be engaged with the matter before they are excluded from Board business. The Board should follow the Code.
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1 At UBC, the process of electing a chair of the board is overseen by the Chancellor, who consults with all governors, and all governors are eligible to vote on the appointment of the chair of the board.